Getting Away With Murder? Saudi Arabia, Jamal Khashoggi & the Magnitsky Act

Jamal Khashoggi (Photo: POMED via Wikimedia Commons)

As a mountain of evidence points to the fact that Saudi security agents killed Washington Post columnist and U.S. resident Jamal Khashoggi in the Saudi consulate in Istanbul, the relevance of the 2016 Magnitsky Act comes into focus. The earliest version of the law was designed to bar Russian oligarchs from entering the U.S. after they murdered a Russian national on Russian soil. As enacted, the law is equally available to exclude Saudi’s royals who now enjoy their U.S. sojourns.

The Global Magnitsky Act pierces the veil of diplomatic immunity for crimes committed by foreign governments. Bill Browder, the U.S.-born, British businessman who shepherded the law to passage said, “It is a game-changer. The Magnitsky Act functions more as a strategic tool, a scalpel not a sword, to let the U.S. target foreign malefactors who violate basic human rights by torture and murder of innocents who stand up for fundamental human liberty.”

“There have to be consequences for everybody,” said Browder, You can’t come to America and you can’t use the U.S. banking system. … It is a privilege that should only be afforded to people who are not chopping their enemies into little pieces.”

In the wake of American outrage at the brutality of Khashoggi’s killing, Republican and Democratic lawmakers have said “enough.”

The Old Way of Thinking

Looking back, the U.S. has come a long way. The U.S. Supreme Court case, Saudi Arabia v. Nelson illustrates the old way of thinking. In December 1983, Scott Nelson, an American engineer went to Riyadh with his wife to work in the King Faisal Specialist Hospital to monitor the hospital’s oxygen lines. During the next few months, Nelson detected fire hazards and reported his concerns. When hospital officials ordered him to ignore the problem, he went to the Saudi government commission on safety.

What happened next was chilling. Agents of the Saudi government arrested him, shackled him, tortured him and transferred him to a rat-infested prison cell. His knees cracked when they strapped a metal rod behind them and he became permanently disabled. “At the prison, Nelson was confined in an overcrowded cell area infested with rats, where he had to fight other prisoners for food,” the Supreme Court opinion states.

Nelson's wife was informed by a Saudi government official that she could arrange for his release if she provided sexual favors, according to the opinion.

After U.S. senators intervened, Nelson was released.

Scott Nelson and his wife, Vivian, filed an action in a federal district court for damages against the Kingdom of Saudi Arabia, the Saudi hospital and the hospital's purchasing agent in the United States, asserting jurisdiction under the Foreign Sovereign Immunities Act of 1976.

They argued that the action was based on “commercial activity” of the hospital, an exception under the FSIA. Their case was dismissed for lack of subject matter jurisdiction in the U.S. District Court for the Southern District of Florida and reversed by the U.S. Court of Appeals for the Eleventh Circuit, where they won. The appeals court concluded that Scott Nelson’s recruitment and hiring were "commercial activities” and therefore not subject to sovereign immunity.

When Saudi Arabia, as petitioner, brought the case to the U.S. Supreme Court, Nelson lost. The Court dismissed the claim, holding that, because government officials rather than hospital employees tortured him, sovereign immunity protected the government from even civil liability. “The intentional conduct alleged here (the Saudi Government's wrongful arrest, imprisonment and torture of Nelson) boils down to abuse of the power of the police,” the holding said.

“However monstrous such abuse undoubtedly may be, a foreign state's exercise of that power has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature.”

Nelson’s lawyer for the U.S. District Court and U.S. Court of Appeals for the Eleventh Circuit cases, Jorge A. Duarte, told NLJ, “We didn't have legislation like you have today.” Duarte continued, “Back then, the Saudis escaped the jaws of the U.S. judicial system because Congress had not authorized any type of legislative scheme to punish and discourage human rights abusers.”

The Lead-Up to the Magnitsky Act

In 2012, after Russian agents tortured and killed Sergei Magnitsky in jail, the first Magnitsky Act was enacted to block U.S. visas to Russian officials responsible for the murder of the tax lawyer who worked with Browder.

That law was updated four years later by the Global Magnitsky Human Rights Accountability Act of 2016. Now, Saudi officials could be subject to exclusion from the U.S. and their assets can be frozen, if the Turkish government's accounts of the savage butchering of Khashoggi prove to be accurate.

Last week, a bipartisan group of U.S. senators invoked the Magnitsky law, triggering “an investigation and Global Magnitsky sanctions determination.”

“The Global Magnitsky Human Rights Accountability Act requires the President … to determine whether a foreign person is responsible for an extrajudicial killing, torture, or other gross violation of internationally recognized human rights against an individual exercising freedom of expression, and report to the Committee within 120 days with a determination and a decision on the imposition of sanctions on that foreign person or person,” the Oct. 10 letter, signed by the senators.

Under the law, the Treasury Department is “empowered to prohibit entry into the U.S. and freeze assets of people considered responsible for corruption and human rights violations … effectively blocking their access to the U.S. financial system.” And last year, Trump wrote a letter underscoring his “commitment to its robust and thorough enforcement.”

“The Global Magnitsky Act is designed specifically for situations like this where there has been an extrajudicial murder by a regime without a rule of law,” Browder said, “If the reports of Khashoggi’s grisly murder are true, this is a clear case for senior Saudi officials to be sanctioned.”

Browder said that “Congress is not dependent solely on the White House or any other body to come to a conclusion on how Mr. Khashoggi came to die. If credible evidence emerges that he was murdered by Saudi agents, the White House will be obliged to apply these sanctions.”

Hagar Hajjar Chemali, a former spokesperson at the U.S. Treasury Department, said “The move on the part of the Senate to call for an investigation under the Global Magnitsky Act was a good maneuver mainly because of the pressure it places on the president to conduct an investigation and follow-up with sanctions.”

President Trump, last December signed an executive order “declaring a national emergency with respect to serious human rights abuses.”

“Today, the United States is taking a strong stand against human rights abuse and corruption globally by shutting these bad actors out of the U.S. financial system,” Secretary of the Treasury Steven T. Mnuchin said at the time.

On Thursday, Mnuchin announced on Twitter that, after speaking with the president and the secretary of state, he would not participate in the Future Investment Initiative summit in Saudi Arabia.

“Magnitsky makes no distinction between a U.S. citizen and a foreign national,” Browder said, “the point of the law is one tool of the administration, but one that makes a strong point, particularly in world leaders’ pocketbooks.”

A Possible U.N. Investigation

The international community is hoping for an investigation without the evident conflicts. In an unusual move on Thursday, three major human rights organizations called for the government of Turkey to ask U.N. Secretary General Antonio Guterres to launch a U.N. investigation into the Khashoggi case. The Committee to Protect Journalists, Human Rights Watch, Amnesty International and Reporters without Borders jointly said that the U.N. should investigate the case. “Turkey should enlist the U.N. to initiate a timely, credible, and transparent investigation,” said Robert Mahoney, deputy executive director of the Committee to Protect Journalists. “U.N. involvement is the best guarantee against a Saudi whitewash or attempts by other governments to sweep the issue under the carpet to preserve lucrative business ties with Riyadh.”

Brett Bruen, a former White House official who now teaches at Georgetown University, said, “We have always had a special Saudi category: They are held to a lower standard than many other nations, predicated on the notion we needed them for assistance on extremists and economic investment. “

The U.S. has given Saudi Arabia more than adequate time to complete the investigation. On Thursday, Secretary of State Mike Pompeo said Saudi Arabia would have “a few more days” to complete it. And Vice President Mike Pence said, “I can assure you that we’re going to follow the facts.”

Whether there will be further investigations under the Magnitsky Act by the U.N., Turkey or the U.S. intelligence community and whether there will be a shake-up in the Saudi Royal family will determine a reshaped U.S.-Saudi relationship for years to come.

What is clear is that justice is now expected to be meted out for those who committed and those who directed such a heinous crime.